National Labor Relations Board v. Kobritz

• Decision Date: 17 December 1951
• Docket Number: No. 4581.,4581.
• Citation: 193 F.2d 8
• Parties: NATIONAL LABOR RELATIONS BOARD v. KOBRITZ et al.
• Court: U.S. Court of Appeals — First Circuit

193 F.2d 8 (1951)

NATIONAL LABOR RELATIONS BOARD v. KOBRITZ et al.

No. 4581.

United States Court of Appeals First Circuit.

December 17, 1951.

COPYRIGHT MATERIAL OMITTED

Arnold Ordman, Attorney, Washington, D. C. (George J. Bott, Gen. Counsel, David P. Findling, Asst. Gen. Counsel, A. Norman Somers, Asst. Gen. Counsel, and Ruth V. Russell, all of Washington, D. C., on brief), for petitioner.

Benjamin E. Gordon, Boston, Mass. (Gordon & Epstein, Boston, Mass., on brief), for respondent.

Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.

HARTIGAN, Circuit Judge.

The National Labor Relations Board pursuant to the National Labor Relations Act, as amended (61 Stat. 136, 29 U.S.C.A. § 151 et seq.), hereinafter called the Act, has petitioned this court for enforcement of its order against the respondent, Samuel J. Kobritz, d.b.a. Star Beef Company, Bangor, Maine. This court has jurisdiction under § 10(e) of the Act, as amended, 29 U.S.C.A. § 160(e).

The order directed the respondent to cease and desist from refusing to bargain collectively with Amalgamated Meat Cutters and Butcher Workmen, Local 385, AFL (hereinafter referred to as the "union") as the exclusive representative of all respondent's production and maintenance employees, including truck drivers and shipping employees, but excluding clerical employees, executives, guards, professional employees and supervisors as defined in the Act; from discouraging membership in said union or any other labor organization by discriminatory hiring and firing; from interfering with its employees' right to organize, form and join the union or any other labor organization and to bargain collectively, etc. The order also ordered the respondent to take certain affirmative action which would effectuate the policies of the Act.

The trial examiner's "Intermediate Report", dated May 4, 1950, gives a fair statement of the case and facts. They are in substance:

"Statement of the case.

"Upon charges and amended charges duly filed by Amalgamated Meat Cutters and Butcher Workmen, Local 385, AFL, herein called the union, the General Counsel of the National Labor Relations Board, herein respectively called the General Counsel and the Board, by the Regional Director of the First Region, (Boston, Massachusetts) issued a complaint dated January 16, 1950, against Samuel J. Kobritz, d/b/a Star Beef Company, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a) (1) and (3) and Section 2(6) and (7) of the National Labor Relations Act, as amended, (Pub.Law 101, 80th Cong., 1st Session) herein called the Act. * * *

* * * * * *

"With respect to unfair labor practices the complaint, as issued, alleges in substance that the respondent: (1) on August 3, 1949, discharged employees Everett Moon and George Grant because of their activities on behalf of the Union; (2) on September 16, 1949, refused reinstatement to eight named employees¹ who, on August 15, had gone on strike because of the discriminatory discharges of Moon and Grant, although said eight employees had unconditionally requested reinstatement; (3) interrogated its employees concerning their union membership, threatened them with certain reprisals if the union successfully organized, and promised them benefits if they ceased their concerted activities; and (4) by these acts interfered with, restrained, and coerced its employees in the exercise of rights guaranteed by the Act.

"Thereafter the respondent filed its answer, dated January 27, 1950, denying the commission of the alleged unfair labor practices and denying that it is subject to the jurisdiction of the Board.

"Pursuant to notice, a hearing was held at Bangor, Maine, on February 7, 8, 9, and 10, 1950, before the undersigned Trial Examiner, duly designated by the Chief Trial Examiner. General Counsel and the respondent were represented by counsel, the union by international representatives. All parties participated in the hearing, and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues.

"During the presentation of his case-in-chief, General Counsel moved to amend the complaint to allege further that the respondent had engaged in unfair labor practices within the meaning of Section 8(a) (1) and (5) of the Act by refusing to bargain collectively with the union and on and after August 1, 1949, although on and after July 26, 1949, the union represented a majority of its employees in a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. The motion was granted. Counsel for the respondent was informed that a motion for reasonable adjournment to meet the amended complaint would be entertained if made at the conclusion of General Counsel's case-in-chief. No motion for such adjournment was made. Thereafter a motion to amend the answer was granted; said amendment denying the 8(5) allegations.

* * * * * *

"Findings of fact.

"I. The Business of the Respondent.

"Samuel J. Kobritz, doing business as Star Beef Company, is engaged in the wholesale purchase and distribution of meat, provisions and produce, with principal place of business in Bangor, Maine. During 1949 the respondent purchased meats and allied products valued at $1,178,667.28 which were shipped to it by rail and truck from points outside the State of Maine. During the same period its purchases within the State of Maine totalled in value $318,412.43. Almost all of its meats and produce are distributed to retail markets in Maine, within a radius of 125 miles from Bangor.

"II. The organization involved.

"Amalgamated Meat Cutters and Butcher Workmen, Local 385, AFL, is a labor organization admitting to membership employees of the respondent.

"III. The unfair labor practices.

"A. Major events and issues.²

"The present controversy arose out of organizational efforts begun by employee Everett Moon at the respondent's plant in the summer of 1949. In response to Moon's attempt to locate a union organizer, Michael J. Mahon, an international representative of the union, came to Bangor and called upon Moon on July 25. Mahon left a number of membership applications with the employee who, the next day at the plant, solicited signatures and gave some of the cards to employee George Grant for distribution by him.

"On July 26, Moon obtained signatures, including his own, upon 5 applications, Grant upon 3. At this time there were 12 employees in the unit claimed by General Counsel to be appropriate for purposes of collective bargaining.

"On Monday, August 1, Mahon called upon Samuel Kobritz, presented his card; introduced himself as a representative of the union, informed him that `all of the boys had signed up with him,'<sup>3</sup> and asked for a contract. Kobritz declined. From this event stems the issue of refusal to bargain. (The record at p. 42 discloses that Kobritz's words were: `He (Mahon) told me that the boys are all signed up with him now, and he wanted a contract from me.')

"Immediately after Mahon's visit, according to his own testimony, Kobritz proceeded to inquire among employees who had signed applications as to what they knew about the union. * * *

"On August 3 Kobritz was told by employee Cobb that Moon and Grant were the leaders in the union activities. Later the same day Moon and Grant were discharged. Whether or not their dismissals were violative of the Act is in issue.

"When these two employees were discharged Kobritz paid them for the remainder of the current and the following week. On August 13 a number of employees met with Mahon and decided to strike the next Monday unless Kobritz reinstated Moon and Grant. The next day Mahon repeatedly communicated with Kobritz, who merely referred him to his lawyer. On Monday all but one of the employees went on strike, and remained out until mid-September, when they applied unconditionally for reinstatement. Kobritz refused to reinstate them, claiming that their jobs had been filled. Since their applications for reinstatement were made only one of the employees has been rehired. It is General Counsel's position, opposed by respondent's counsel, that: (1) the strike was caused by the respondent's unfair labor practices; and (2) that the strikers were discriminatorily denied reinstatement on September 16, 1949."

The respondent's contentions, opposing the Board's petition for enforcement, are summarized in its brief as follows:

"A. The Board improperly asserted jurisdiction in this case.

"B. The Board's finding that respondent, by interrogation, threats of reprisal and promises of benefit, interfered with, restrained and coerced his employees in violation of Section 8(a) (1) of the Act is not supported by substantial evidence on the record considered as a whole.

"C. The Board's finding that respondent refused to bargain with the Union in violation of Section 8(a) (5) of the Act is not supported by substantial evidence on the record considered as a whole.

"D. The Board's finding that respondent violated Section 8(a) (3) of the Act by discharging employees Moon and Grant and by denying reinstatement to nine strikers is not supported by substantial evidence on the record considered as a whole."

The respondent's first contention, regarding jurisdiction, seems to revolve around the theme not that the Board did not have jurisdiction but that the Board should not have asserted jurisdiction. Respondent points to an alleged policy of the Board (prior to October 3, 1950 and in effect when this case arose in 1949 and when submitted to the Board in June 1950) that the Board would not take jurisdiction of such a case as this. It is argued that the respondent, relying in good faith on this policy, thought its case was outside the pale of the Board's action and that any application of a policy enunciated by the...